Legislature(2003 - 2004)
03/24/2004 08:03 AM House STA
| Audio | Topic |
|---|
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
HB 132-AG INTERVENE IN NATURAL RESOURCES ACTIONS Number 1463 CHAIR WEYHRAUCH announced that the next order of business was HOUSE BILL NO. 132, "An Act relating to the duties of the attorney general; requiring the attorney general to participate in all actions affecting the management and jurisdiction of the natural resources of the state; amending Rule 24(c), Alaska Rules of Civil Procedure; and amending Rule 514, Alaska Rules of Appellate Procedure." Number 1473 REPRESENTATIVE SEATON moved to adopt HB 132. Number 1490 CHAIR WEYHRAUCH explained that HB 132 would require the attorney general to participate as a party in lawsuits that affect the management and jurisdiction of the natural resources of the state. He noted that that language appears [as an amendment to AS 44.23.020(b)], on page 2, [lines 18-25], paragraph (10). He explained that this proposed legislation came about because of concern that currently the State of Alaska, through the executive branch, and specifically the attorney general, is not involving itself in cases affecting fisheries, jurisdiction, or management of natural resources. CHAIR WEYHRAUCH offered a timely example of the state's inability to involve itself in the wilderness waters issues. He noted that the state passed a resolution asking the [U.S.] Department of the Interior to appeal a case that affected Alaska's fisheries. Soon after that resolution was adopted, the attorney general did become involved. Chair Weyhrauch said, "It did take a legislative goosing to get the state involved in that." He said he thinks the State of Alaska has a fundamental interest in joining these types of lawsuits where the state's management and jurisdiction of natural resources is put at risk. CHAIR WEYHRAUCH noted that the second part of the aforementioned language would allow the attorney general to enter into agreements with other governments or sovereigns if the agreement benefits [the management of a natural resource of the state]. CHAIR WEYHRAUCH revealed that he had been advised that the Office of the Attorney General opposes [HB 132], and he said he's had concerns voiced to him that [HB 132] would infringe upon the prerogatives of the executive branch by the legislative branch. He pointed out that the statute already dictates what the attorney general "is going to do." He read some examples. He stated that what really drove this proposed legislation initially was the Katie Johns v. United States case. Number 1648 LANCE NELSON, Senior Assistant Attorney General, Natural Resources Section, Civil Division (Anchorage), Department of Law, told the committee that he has held his position in the department for about 19 years. He read his testimony as follows: House Bill No. 132 requires the attorney general to participate as a party in a judicial proceeding that affects the management and jurisdiction of the natural resources of the state, and to ensure by that participation that the management and jurisdiction of the natural resources are not diminished or ceded to another government or sovereign. The bill ... also amends the rules of Civil Procedure and the Rules of Appellate Procedure to require the court to notify the attorney general when a case arises that may fall within that category. We're concerned that it will harm Alaska's interest to take away the attorney general's discretion to decide whether to participate as a party in particular litigation. We acknowledge that the bill is clearly intended to protect the state's jurisdiction, but it may hinder the attorney general's ability to preserve state authority over natural resources, because it is very broad and it applies indiscriminately. It takes from the attorney general the ability to [ensure] that important issues are presented to a court in the manner most advantageous to the state. While the attorney general may well determine that intervention in an existing case is the best way to protect state interests, under HB 132, he cannot consider other options. With no ability to make strategic decisions, the attorney general may be forced to litigate an important issue under less than ideal circumstances, with negative precedential consequences. For example, cases that affect the management and jurisdiction of natural resources frequently raise state sovereignty issues. Strategically, the state is ill advised to litigate these issues before the Court of Appeals for the Ninth Circuit, because, in Alaska's experience, this court seems to apply a presumption against state sovereignty. In a reactive mode, however, forced to intervene in a case brought by others, the state may have no choice. In a proactive mode, the state can raise the issue itself by filing suit in a court more likely to give serious consideration to Alaska's interests. Number 1750 Other strategic decisions are also important to the state's chance of success in litigation. Often cases will turn on the underlying facts, and good legal strategy dictates that an important issue be based on a factual situation that tends to highlight the justice of the state's position. Facts that invoke sympathy for the state's opponent, on the other hand, will harm the state's chance of success, even if the state is correct on the law. Under HB 132, the state will be forced to litigate an issue regardless of whether the underlying facts support the wisdom of the state's position. And once the state litigates a legal issue, it generally will be bound to the outcome in future cases involving that issue. Timing is also a consideration in litigating state sovereignty issues. Some say that the United States Supreme Court is gradually increasing its recognition of the inherent authority that states have under the United States Constitution. It's a gradual increase, however; the Supreme Court does not completely reverse years of case law at once. The state has been careful in all cases it brings, trying to gauge how far it can push certain issues, and how best to raise them. If the state tries to make huge gains in a single case, it may lose on everything. Yet the state may be forced into that position if the attorney general cannot choose the litigation in which he participates. The bill also raises concerns about the best use of Department of Law resources. The department often declines to intervene in private litigation because, although the state's interest in natural resources jurisdiction is arguably involved, the financial resources required to participate don't justify the potential benefit to the public. For example, private landowners or leaseholders sometimes bring trespass actions against guides or fishermen for fishing on their property. The fishermen answer that they were fishing below ordinary high water on a navigable waterway, and therefore they were on state land, not private land. The state may have an interest, because the outcome may depend on whether the waterway is navigable, or on precisely where ordinary high water ends and private upland begins. The state generally declines to participate in this type of case, however. While the private defendants want the state's help in preparing their defense, the cost to the state can be enormous. Determining navigability or the limits of ordinary high water requires historians, hydrologists, and other experts, and lots of attorney time. The cases rarely raise a purely legal issue; generally the cases are the culmination of long-running disputes that turn on the facts, that are personal and raise messy credibility issues. The overall payoff for state participation can be insignificant. For example, at best a case might establish that at one particular place, the public has a right to stand and fish, provided they don't wander above ordinary high water onto the plaintiff's property. If the state does not participate, it is not bound by the decision and can litigate the issue in the future. Number 1869 When a case raises this type of management or jurisdictional issue, the attorney general needs the discretion to decline participation. The attorney general has to be able to decide how to use scarce litigation resources to maximize the return to Alaska's citizens. And we do have scarce resources. The Natural Resources Section that I serve in is about one half the size it was in the early '90s because of budget cuts over the years. We are not sufficiently staffed to handle this level of mandatory litigation burden. We believe we are doing a good job of protecting the state's interest in intervening in lawsuits when appropriate. We have filed in a number of timber sale cases, the "Bristol Bay antitrust" lawsuit, the "Tustumena Lake" case, and the ["National Petroleum Reserve-Alaska" (NPR-A)] litigation. We are taking an active role in many important natural resources cases. In short, the legislative branch may not agree with every litigation decision the attorney general makes, but it shouldn't try to take away his ability to make them. The attorney general needs the discretion to determine the best litigation strategy to advance important state sovereignty issues and to decline to participate in cases where the cost is not justified by the potential benefit. HB 132 makes an all- encompassing decision that the state must always participate in litigation in a broad category of cases, but we do not see, at this point looking into the future, that this will turn out to be a good decision. Number 1939 CHAIR WEYHRAUCH asked Mr. Nelson how many cases per year involve an issue relating to diminishment of the state's ability to manage its resource to another government or sovereign. MR. NELSON answered he doesn't know. He said, "We have some concerns about what that would show if we started actively looking, and I think the bill would put on us, basically, an affirmative duty to start doing that." Number 1980 REPRESENTATIVE BERKOWITZ revealed that when he worked in the Department of Law, Mr. Nelson was one of the people who oversaw some of his work. He stated, "We're really lucky we have people like him working for us. I think it's one of the reasons why the legislature's been able to cut the budget for the Department of Law for so long, because we have a lot of really fine people working those sections." He reminded the committee that there are half the number of people there that were there in the early '90s and the issues are as great or even greater than they were at that point. Number 2014 MR. NELSON, in response to a question from Chair Weyhrauch, clarified that by "proactive mode" he meant that [HB 132] would put an affirmative duty on "us" to go out and search out every single case. Currently, most of the important cases come to the fore and the option of intervention is discussed and evaluated. However, he stated that there may be a lot of other cases out there that don't have the notoriety of the cases that have been looked at, and those less noted cases may have to be examined, too. He said, "Once the public is aware of this duty, I'm sure we're going to get all kinds of requests for private litigants to come in and get the state on their side." CHAIR WEYHRAUCH noted that the last section of the bill would put permanent duty on parties to notify the state when the management or jurisdiction of a natural resource of the state may be affected. He suggested that would seem to take it away from the state duty to "run around and find these cases" and "put it on the party litigating that they must notify the state." MR. NELSON responded that that may be true, but the end result would be that there would be more cases to review and it would certainly take a lot of time. CHAIR WEYHRAUCH asked Mr. Nelson if he could think of any case in which it's not the interest of the State of Alaska to involve itself when that case involves the diminishment or [cession] of the state's management and jurisdiction to another sovereign. MR. NELSON answered yes. He explained as follows: For example, if somebody challenges a federal subsistence regulation because they think the federal government is overreaching in its authority, it may well be that, because of the facts of the case or maybe someone's being deprived of an opportunity because of the facts of the case, "we" would prefer to challenge a selective challenge on regulations where the facts of the situation [point] out the justice of the state's case, as opposed to making the state look like we're anti-subsistence. You're probably aware of the decision from the Ninth Circuit that have listed things we do as one more example of the state's denigration of the subsistence rights of Alaskans. And we would want to be able to mount a challenge on our own, and not be forced to become involved where we couldn't really steer the proceedings and the litigation and limit the issues to the ones that we thought had some chance of success, and paint the state's legal positions in the best light. And that's maybe not the best example, but there are a lot of cases out there where people are arguing about the federal government's ability to do things, where the litigation could go on and on forever, because ... even if we intervene, we would not be able to control the scope of the litigation at that. I think it would be not to our advantage where law would be made, and because we're a party, we'd be bound by it to be involved in that kind of litigation. Number 2164 CHAIR WEYHRAUCH asked if the Department of Law would be opposed to the legislature's requesting through a resolution, for example, that the Office of the Attorney General become involved in a case it judges as important. MR. NELSON replied that he cannot speak for the department on that; however, he expressed his belief that, as has happened in the past, he doesn't think that the attorney general would object to the legislature expressing its policy views in that manner. Number 2219 REPRESENTATIVE GRUENBERG turned attention to Section 3 of the bill. He asked Mr. Nelson if he believes that there may be some merit in requiring the notification of the Department of Law in certain kinds of natural resource cases or any other kinds of cases. He explained the reason for his question is because he thinks that the requirement in Rule 24 that the attorney general be notified when the constitutionality of a law is called into question is an important one. He suggested that there may be some types of natural resource cases that the attorney general ought to be notified about. He said he wonders whether Rule 24(c) and the equivalent appellate rule ought to be expanded in some way to require the notification of the state in "certain types of other cases." He pointed to the language on page [3], beginning on lines 3 and 12, regarding the constitutionality of state statute being drawn into question. He noted that the phrase "affecting the public interest" appears in the first reference beginning on line 3, but not in the second reference having to do with the equivalent appellate rule. He questioned whether that appellate rule should be amended to include the same phrase. REPRESENTATIVE GRUENBERG questioned "whether that ought to be expanded to include regulations affecting the public interest." He also noted, "If it's a regulation, it's not just a question of the constitutionality, but the legality of a regulation affecting the public interest." Number 2345 DAVID W. MARQUEZ, Chief Assistant Attorney General, Legislation & Regulations Section, Office of the Attorney General, Department of Law, echoed Mr. Nelson's previous remark that it could take quite a bit of effort to scan all the court records - which may be in several jurisdictions - to find out what cases might be affecting natural resources, regarding constitutionality and diminishment of sovereignty, for example. He said he thinks there may be merit in receiving notices of cases that might "affect us." He added that he is sure that the legislature might also like to know about "those kind of cases that might be out there." TAPE 04-45, SIDE B Number 2378 MR. MARQUEZ revealed that he has only been with the department a little over a year and he doesn't know what resources would be available to "scan" those notices. Number 2355 REPRESENTATIVE GRUENBERG indicated that there is an equivalent federal provision that requires the U.S. attorney general to be notified when the constitutionality of a federal statute is called into question. He stated that he doesn't know if there is an equivalent provision in the federal rules of appellate procedure. He observed there is nothing in Rule 24(c) that requires, in a state preceding, that the U.S. attorney general must be notified if the constitutionality of a federal statute is called into question, because the federal rules don't apply in state court. He said he thinks that if the constitutionality of a federal statute is called into question, a U.S. attorney general should be notified, because one issue that would immediately become of interest to the U.S. attorney general's office would be whether that case ought to be removed from state court to federal court. He stated, "Mr. Chair, I have some of the same problems that the attorneys have already expressed on this bill, and I see this as an important potential vehicle for providing some really good amendments to ... Civil Rule 24(c) and possibly Appellate Rule 514, and I'm wondering if the chair would be willing to have this bill looked at from that point of view." Number 2290 CHAIR WEYHRAUCH responded that he has a number of amendments and the bill will be brought back before the committee. Number 2274 REPRESENTATIVE HOLM offered his sense that part of the solution being focused on for development is based upon the fact that [Alaska] doesn't have an elected attorney general. He clarified that by that he means that there is no direct relationship between who the attorney general is and what is in the best interest of the people of Alaska, necessarily. He cited [Glacier Bay National Park and Preserve] as an example of when the federal government comes in and takes a piece of Alaska and no one fights them. He said there have been many cases where the state has gotten involved in the best interest of the people of Alaska. He indicated that he somewhat thinks it is appropriate to exercise some legislative control over the attorney general's office in "this way." He stated that "all of us here" are concerned with the state's rights for its sovereignty and want to demand that the attorney general take the appropriate action. He indicated that [HB 132] is a good starting point. Number 2208 CHAIR WEYHRAUCH remarked that it seems like a bill calling for an elected attorney general is introduced almost every session. He suggested that an elected attorney general might consider whether pursuing an issue was in his/her best political interest. He indicated that the legislature would still have to impose on [the attorney general] an obligation to do what's best for the [state], whether that attorney general was elected or not. Number 2175 REPRESENTATIVE GRUENBERG questioned whether, constitutionally, the legislature can order the attorney general to participate in a case or to take a certain position. He said he is aware of at least two cases that say that "the judiciary" cannot do so. He gave some examples of cases that deal with violations of separation of powers. He said is not aware of any case determining whether the attorney general can be ordered by the legislature to participate or prosecute any case or a given type of case. He told Mr. Marquez that he would like to see some legal research on that. Number 2070 MR. NELSON clarified that "our" objections are based on Sections 1 and 2, rather than Sections 3 and 4. More specifically, he said he doesn't think "we" have any serious problems with the notice requirements that are in Sections 3 and 4. He continued as follows: I think the bill does raise serious separation of powers issues, because the Alaska [State] Constitution does give the governor the authority right now to basically steer the legal participation by the state and the courts. And the bill raised the question of, "Does this overstep policy-making authority of the legislature to ... set policy for the state and go beyond that and basically direct an executive function in a more detailed way ... that would be inconsistent with the separation of powers doctrine?" ... We haven't chosen to ... highlight those issue as the main concern for the bill at this point in time, but we do recognize those as serious issues. CHAIR WEYHRAUCH said he thinks he pointed that out when he introduced the bill. Number 2000 REPRESENTATIVE SEATON, regarding Sections 3 and 4, said it seems like, currently, under both those rules, notice is given by the court to the attorney general of anything challenging the constitutionality. Representative Seaton turned attention to the added language on [page 3, lines 4-5], which read as follows: , or (2) the management or jurisdiction of the natural resources of the state may be affected, REPRESENTATIVE SEATON said it seems like every case that's taken by a fisherman is talking about the management of a fisheries resource. He said he wants to get a handle on whether the requirement on lines 4 and 5 would mean that "you would have to get notification of almost every fisheries case that goes forward." He interjected that he is not as familiar with timber cases, but he stated his concern that "this is broadening the ... noted provisions so much that it might be kind of plowed when the constitutionality notifications are coming." CHAIR WEYHRAUCH responded that it seems that if there is some other entity rather than the State of Alaska managing or having jurisdiction over the state's fisheries, the state better know about that case. He asked Mr. Nelson to respond. MR. NELSON reiterated that [the department] doesn't really have a concern with Sections 3 and 4. He said: I think that would place a burden on the court system and parties, as opposed to the state. I think that ... there's a potential, I guess; any time state law or a state regulation is challenged or a narrow interpretation of that is urged, then that might implicate those sections and require some kind [of] notice. And so, there probably would be a pretty big grey area where the courts would probably err on the side of ... wanting to comply with the requirements of the rules and the parties too, and it may be broader than you'd wish to see. Number 1900 REPRESENTATIVE SEATON noted that the aforementioned lines 4 and 5 don't just relate to those cases in which there's another sovereign or anybody asserting jurisdiction; it says that the management of natural resources may be affected. He said it seems like [in] every case there is a challenge of regulation "or something there." He asked [Mr. Nelson] if he agreed with his interpretation of the language on lines 4 and 5. Number 1872 MR. NELSON responded that it is broad language and may have the potential to result in notices of a lot more cases than what is really intended by the bill. CHAIR WEYHRAUCH said it seems to him that if that were an issue then it could be resolved by inserting the word "state" in between "the" and "management". Number 1844 REPRESENTATIVE GRUENBERG responded that he doesn't think that would [solve the issue], because "this is very, very broad," and it will really require some careful drafting. He said he hopes the department will consider the comments that have been uttered today and "figure on a policy basis what we ought to do with those two rules." He stated that he also sees some impact on two other groups of people who are not represented at the hearing: all the members of the bar, and the court system. Number 1809 CHAIR WEYHRAUCH announced that [HB 132 was heard and held].
| Document Name | Date/Time | Subjects |
|---|